Digest:Where a judge’s complaint to the State Commission on Judicial Conduct about an
attorney-judge who is appearing before him/her in a homicide case (1) was made
subsequent to the attorney-judge having complained to the State Commission on
Judicial Conduct about the inquirer, (2) involves, in part allegations concerning
the attorney-judge’s conduct before other judges, and (3) both complaints are
currently under consideration by the State Commission on Judicial Conduct, it is
advisable that the judge exercise recusal in the pending matter.

The inquiring judge is scheduled to preside over a homicide. The attorney for the
defendant, who is also a part-time village judge, has filed a complaint against the judge with the
State Commission on Judicial Conduct. Subsequent to the filing of that complaint, the inquirer
filed a complaint with the State Commission on Judicial Conduct alleging that the attorney “had
violated the Code of Judicial Conduct as it applies to a Village Court Judge and the Standards of
Conduct as they apply to an attorney.”

Essentially, the attorney-judge accuses the judge of a bias that is pro-prosecution and of
seeking to impede the attorney in the handling of criminal defense matters. The judge accuses
the attorney, among other things, of being very disrespectful to judges and of using insulting
language in briefs, motions and affidavits. Instances are cited where this has occurred in cases
that were handled by other judges. Both sets of complaints are pending before the Commission.

Noting that he/she can be fair and impartial in the pending homicide proceeding, the
inquiring judge seeks the opinion of the Advisory Committee as to whetherr, under the
circumstances, he/she should continue in the case or exercise recusal.

As a preliminary matter we note that the Advisory Committee has consistently held that
the fact that a party or attorney has filed a complaint with the State Commission on Judicial
Conduct alleging that the judge is guilty of judicial misconduct is not, in and of itself, a sufficient
basis for requiring disqualification. See, Opinions 98-69 (Vol. XVII); 97-102 (Vol. XVI); 94-94
(Vol. XII). To hold otherwise, we believe, would give aid and encouragement to those who seek
to use such a device as an avenue or means to engage in judge-shopping. Thus, had the
Committee been presented with the fact of the making of the complaint by the attorney-judge,
and that fact alone, our response would have been in accordance with our earlier opinions.

However, the judge in this instance is also a complainant before the same disciplinary
body as the attorney and is alleging both judicial and professional misconduct. The complaint
was filed after the attorney had made his/ her allegations concerning the judge, and involves, in
part, claims of misconduct by the attorney-judge in cases presided over by other judges.

Given this set of circumstances, the Committee has concluded that, notwithstanding the
ability and capacity of the judge to be fair and impartial in presiding over the pending matter, it is
preferable that the judge exercise recusal. The judge and the attorney are now engaged in a
process of seeking to have the same body, i.e., the State Commission on Judicial Conduct, render
determinations concerning mutual allegations of misconduct. Those determinations could
possibly be made while the criminal proceeding is still pending. In our view, such
determinations, whether favorable or adverse as to one complaint or the other or both, where the
case is ongoing, could potentially create an unhealthy situation. That is, the appearance of
infection of the trial by what is happening or has happened before a disciplinary body, where, in
effect, the parties are adversaries in two separate matters should be of real concern. Further, the
fact that the judge made his complaint after the attorney-judge had made his/her complaint and
went beyond the particulars of personal knowledge of the attorney’s behavior might possibly
create an impression that it was in some manner retaliatory.

We hasten to add that we are not claiming that the judge should not have made the
complaint, nor is anything herein intended to contest the validity of that complaint or to express
any views whatsoever concerning the matter. Rather, it is our advice that in this particular
instance it is preferable that the judge exercise recusal so as to avoid even the appearance that
his/her impartiality might be subject to question in the handling of the homicide trial that is
pending. 20 NYCRR 100.3(E)(1).